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By RAPHAEL WONG
PUTRAJAYA: The Federal Court has granted secretary R. Subashini leave to appeal against a Court of Appeal's decision ordering her to go to the Syariah Court to fight for her matrimonial and custodial rights.
The court also granted her husband T. Saravanan, whose Muslim name is Muhammad Shafi Abdullah, leave to appeal against a decision by the same court to prevent him from initiating or continuing any proceedings in the Syariah Court or converting their youngest son pending the final outcome at the apex court.
Federal Court judges Justices Abdul Hamid Mohamad, S. Augustine Paul and Abdul Aziz Mohamad unanimously allowed the application of the 28-year-old mother of two after hearing submissions from her counsel Malik Imtiaz Sarwar and Saravanan's counsel Mohamed Haniff Khatri Abdulla.
The court also granted Subashini an injunction to prevent Saravanan from initiating or continuing with any proceedings in the Syariah Courts or converting their younger son pending the disposal of the appeal at the Federal Court.
The two parties also submitted nine agreed questions which their lawyers will argue on during their appeals. (see box below).
However, Justice Abdul Hamid said the judges had decided to add another question for the lawyers to debate.
He added that if this question was answered in the affirmative, the Federal Court would then answer all nine other questions agreed to by both parties.
The anchor question for the court to answer is whether a court hearing an interim injunction application, whose duty is to only consider whether there is a serious issue of law to be determined, can go a step further to decide on issues of law especially regarding jurisdiction.
At the outset, the judges found it difficult to allow the nine questions to be posed as it would predetermine the divorce petition, which was still pending in the High Court.
Justice Paul said that both parties should confine their questions to the issue of the High Court refusing to grant Subashini an interim injunction to prevent Saravanan from initiating or continuing any proceedings in the Syariah Court or from converting their youngest son pending the divorce petition.
"Your question must be framed on the basis whether there is a serious issue of law to be answered," he said.
On March 13, Justices Suriyadi Halim Omar, Hassan Lah and Gopal Sri Ram had, in a 2-1 majority judgment, ordered Subashini to bring her divorce and custody claims to the Syariah Court.
Two weeks later, the same panel in a majority judgment, granted an injunction preventing Saravanan from initiating or continuing with any proceedings in the Syariah courts or converting their younger son.
Subashini and Saravanan, 31, have yet to finalise their divorce. They have two children ? Dharvin Joshua, four, and one-year-old Sharvin.
Court allows application but imposes condition
http://www.nst.com.my/Current_News/NST/Friday/National/20070518075651/Article/index_html
V Anbalagan
PUTRAJAYA: Secretary R. Subashini won a key battle to restrain her estranged Muslim husband from pursuing his claim in the syariah court.
The Federal Court yesterday allowed her application for leave to appeal but imposed a condition.
Federal Court judge Datuk Abdul Hamid Mohamad ordered the counsel for Subashini and Muhammad Shafi Saravanan Abdullah to submit whether a court could make a final determination on issues of law in an injunction application.
He said if the question was answered in the affirmative, only then would the court proceed to entertain the remaining nine agreed questions of law submitted by both counsel .
Hamid also extended Subashini's interim injunction to stop her husband from going to the syariah court, pending the disposal of her appeal.
Sitting with Hamid were Datuk S. Augustine Paul and Datuk Abdul Aziz Mohamad.
For almost nine months, Subashini, 28, has been embroiled in a legal tussle with Shafi, 31, a businessman whom she married in 2001. They have two boys.
On May 19 last year, Shafi embraced Islam and then converted their eldest son, Dharvin, 4.
He then filed an application at the Kuala Lumpur Syariah Court to dissolve their civil marriage and obtain custody of Dharvin and Sharvind, 2.
Upon hearing Shafi's pending application at the syariah court, Subashini filed a petition at the Kuala Lumpur High Court on Aug 7 to dissolve their marriage and to obtain custody of the children and maintenance.
The matter became complicated because Shafi had gone to the syariah court while Subashini had gone to the civil court to plead her case.
To ensure that her petition was not rendered academic, Subashini filed for an injunction to stop Shafi from getting the relief at the syariah court..
In September, the High Court dismissed Subashini's application to stop Shafi from resolving their marital problems in the syariah court.
The Court of Appeal, in a majority judgment, upheld the decision of the High Court that the injunction sought by Subashini was unconstitutional as it would have prevented the syariah court from carrying out its duties.
On Wednesday, Paul told lawyer Malik Imtiaz Sarwar, who is appearing for Subashini, to confine his submission on whether the High Court judge was right in setting aside the injunction.
Yesterday, Malik told the judges that a Federal Court judgment had pronounced that the merit of a case could be decided on even when parties were arguing in an injunction application.
"We have to bring in the jurisdiction issue on whether the couple's divorce and custody of children should be heard in the civil or syariah court," he said.
Paul then said that in order to obtain an injunction, Subashini's counsel should have convinced the High Court that there were serious questions to determine at the divorce petition proceedings.
"By asking us to answer the questions, you are adding one mistake to another," he said.
Malik then said parties were already using the majority Court of Appeal judgment while the High Courts were waiting for the outcome of Subashini's matter at the Federal Court.
